Citation Nr: 21066179 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-11 443 DATE: October 28, 2021 ORDER For the entire period on appeal, entitlement to a disability rating of 60 percent for gastroesophageal reflux disease (GERD) with Barrett's Esophagus, the maximum schedular rating under the applicable diagnostic code, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his GERD with Barrett's Esophagus has been manifested by symptoms of epigastric pain, dysphagia, pyrosis, nausea, vomiting, and other symptom combinations productive of severe impairment of health for the entire period on appeal. CONCLUSION OF LAW The criteria for a disability rating of 60 percent for GERD with Barrett's Esophagus are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from June 1981 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In March 2019, the Veteran testified during a video-conference Board hearing. A copy of the hearing transcript is of record and has been reviewed. The Board is aware of the Court's decision in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. In September 2021, the Board notified the Veteran that the Veterans Law Judge who conducted the March 2019 Board hearing is no longer available to participate in the appeal and that the Veteran had the option to request another hearing before the judge who will adjudicate this claim. It explained that if he did not respond within 30 days from the date of the letter, the Board would assume that he does not want another hearing and to proceed accordingly. See Board correspondence dated September 14, 2021. The Veteran replied in October 2021, requesting a video-conference Board hearing. However, as the Board herein grants in full (maximum 60 percent schedular rating) the benefits sought in the Veteran's claim for an increased rating for GERD with Barrett's Esophagus, the Veteran will not be prejudiced by the Board rendering a decision without further delay. Indeed, the Veteran specifically requested a 60 percent rating for his GERD; thus, this award should satisfy his request in that regard. See March 2019 hearing transcript. Procedural History In December 2019, the Board dismissed the Veteran's claims for service connection for a dental condition and cricopharyngeal spasm pursuant to the Veteran's request during the March 2019 Board hearing and denied his appeal for revision of an effective date for service connection for depression based on clear and unmistakable error. Those decisions are final and are no longer in appellate status. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. Also, in December 2019, the Board remanded the Veteran's claim for entitlement to a rating in excess of 30 percent for GERD with Barrett's Esophagus for a VA examination to determine the current severity of the Veteran's symptoms. The Veteran underwent a VA examination in April 2020 and the examination report is of record and has been reviewed. The Board finds substantial compliance with its December 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Increased Ratings Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where a veteran is diagnosed with multiple disabilities of the same body part or system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Rating Analysis The AOJ assigned a 30 percent rating, effective April 24, 2003, for the Veteran's GERD with Barrett's esophagus under DCs 7304-7346, based on persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain which was productive of considerable impairment of health. See Rating Decision dated January 27, 2004 at pg. 3. The Veteran claims that a higher rating is warranted. VA regulations provide that there are diseases of the digestive system, particularly with the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. 38 C.F.R. §§ 4.14, 4.113. Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the DC that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Under DC 7346, a 30 percent rating is warranted for hiatal hernia that manifests as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The highest schedular rating of 60 percent is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "considerable" or "severe." Spellers v. Wilkie, 30 Vet. App. 211, 219-20 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Turning to the evidence, an April 2012 VA esophagram inspection of a Nissen fundoplication performed a decade earlier revealed partial breakdown of the fundoplication with herniation of a portion of gastric fundus into the supradiaphragmatic region. It was noted that the breakdown could account for reflux of nondigested material back into the esophagus. July 2012 VA dental consultation notes reflect that the Veteran reported that he vomited a great deal due to GERD. During a February 2013 VA mental disorders examination, the Veteran reported he feels nauseated often and "I have a lot of puking problems." He described having diarrhea "a lot," bloody stools, and that he was taking several medications for his stomach. He said his gastrointestinal medications were helpful and if he doesn't take them, he has more stomach symptoms. March 2013 VA treatment notes reflect that the Veteran reported pain in the upper abdomen. The Veteran said taking Protonix 40 mg twice a day alleviated the symptoms, but that if he did not take his medication, he would develop severe burning of his throat, nausea, and non-bloody vomiting. On examination the Veteran had intense pain in the epigastrium. March 2013 statements from the Veteran's family, friends, and coworkers describe the impact of his GERD symptoms. His sister A.J. said the Veteran frequently complained of severe stomach pain. His friends J.L. and N.L. stated that the Veteran has always had a tough time eating foods, especially at restaurants, noting that they had seen him frequently getting sick after eating, and that over the years they had gone out for dinner with the Veteran less and less because of his difficulty eating. A coworker, C.F., said the Veteran was "sick a lot with his stomach," which resulted in his missing work. In March 2013, the Veteran presented to a VA medical center emergency room and was admitted for observation after reporting melena that started two weeks earlier with blood appearing on toilet paper and in the toilet, progressing to half a cup of blood in the toilet with intermittent dark stools. The diagnosis was bright red blood per rectum and melena. The Veteran endorsed burning pain in the "epigastric area" and vomiting. He was negative for dysphagia, hematemesis and abdominal pain. He endorsed recent weight loss. A VA physician determined that the Veteran did "not warrant inpatient treatment," and the Veteran was discharged that day. See VA medical center treatment notes dated March 21, 2013. The Veteran was afforded a VA examination in May 2013. The diagnoses were GERD with Barrett's esophagitis. At that time, the Veteran was taking medications, including the prescription antacid Sucralfate. The Veteran reported that over the past twelve months he had had ongoing burning pain most noticeably extending all the way from subxiphoid region to the base of his neck. He noted that eating and swallowing is always associated with the burning discomfort in his retrosternal area. He endorsed nausea twice a day, associated with a "pressure sensation" at the lower end of his sternum, which progresses to subxiphoid pain if he doesn't eat, and he endorsed morning vomiting. He said taking a prescribed proton pump inhibitor and Sucralfate helped reduce the subxiphoid and retrosternal discomfort as well as nausea. The examiner noted symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis (heartburn), reflux, and recurrent nausea lasting less than a day four or more times per year and recurrent vomiting lasting less than a day four or more times per year. The Veteran was negative for esophageal stricture, spasm or diverticula. The Veteran was negative for fever, chills, and weight loss or weight gain greater than 10 pounds over the previous six months. He was negative for hematemesis, melena, colic, abdominal distention, fecal leakage, and involuntary bowel movements. The examiner noted that the Veteran had borderline anemia, mostly likely due to recent gastrointestinal bleeding in March 2013. He denied use of pads or diapers. Regarding the functional impact of the Veteran's GERD symptoms, the VA examiner noted that the Veteran reported missed work several times a year because of more significant vomiting associated with GERD. See VA Esophageal Conditions examination dated May 15, 2013. In October 2013, the Veteran underwent an endoscopy. The diagnosis was Barrett's esophagus. During a November 2013 VA outpatient appointment, the Veteran complained of epigastric pain. The Veteran underwent a VA examination for posttraumatic stress disorder in March 2014, at which time he said he felt nauseated often and vomited twice a week on average. He said his throat was sore constantly from reflux. During a VA psychiatric outpatient appointment in April 2014, the Veteran said he continued to have bouts of diarrhea and stomach upset with acid reflux. In his May 2014 Notice of Disagreement, the Veteran said, "I have even left work puking on the way out the door," due, in part, to his bad stomach. During an August 2014 VA outpatient appointment, the Veteran reported that he was vomiting most often in the mornings three to four times a week. VA outpatient records dated April 2015 reflect that the Veteran was taking Protonix twice a day for GERD symptoms. May 2016 VA outpatient notes reflect that the Veteran reported that his heartburn was well controlled with Sucralfate. During a VA appointment in April 2017, the Veteran reported occasional nausea and vomiting, but it was noted that his heartburn symptoms appeared to be well controlled when taking proton pump inhibitors and Sucralfate therapy. The Veteran was negative for dysphagia, nausea, vomiting, hematemesis, melena, hematochezia, diarrhea, and weight loss. However, during a May 2017 VA medical center emergency room visit, the Veteran reported progressive right upper quadrant epigastric pain and mild nausea without emesis. He denied changes in bowel habits, fever, and chills. On examination, there was tenderness to palpation of the right upper quadrant rib interface and epigastrium. He was discharged to home with instructions to call if the pain worsened. August 2017 VA outpatient notes reflect that the Veteran reported continuing gastrointestinal difficulties with vomiting typically twice a day, at least, and loose stools. He said taking Sucralfate wasn't helping. In September 2017, the Veteran endorsed worsening gastrointestinal pain and discomfort, repeated vomiting, and chest pain. VA treatment notes dated May 2018 reflect the Veteran's report that he experienced nausea every day after 3-4 bites of food and he threw up 2-3 times a week after eating. He denied blood in his emesis. He endorsed swallowing difficulties at times and said he drank Mountain Dew and ate bread. He continued to have loose stools. He denied any weight changes. He denied hematemesis, fever, sweats or chills. He said he eats a small amount of food he must be near a restroom because he will have a bowel movement. He was taking Pantoprazole 40 mg twice a day for reflux. He said he continued to experience heartburn in his mid-stomach to mid sternal region. The physician noted symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances caused by esophageal reflux. June 2018 VA psychiatry notes reflect that the Veteran continued to have gastrointestinal difficulties, which fluctuated, and he endorsed periods of significant recurrent vomiting, diarrhea, nausea, and physical discomfort and pain. July 2018 correspondence from VA physician B.H., M.D. note that the Veteran's gastrointestinal "difficulties have fluctuated over time, but he experiences periods of significant recurrent vomiting, diarrhea, nausea and physical discomfort/pain." In a September 2018 statement, the Veteran's former spouse L.T. described the Veteran's "constant vomiting in restaurants" during their marriage. December 2018 VA outpatient notes reflect the Veteran's endorsement of ongoing stomach problems. He said he was unable to take more than five or six bites of food without risk of vomiting. He said he was losing weight because of decreased food intake because of swallowing and vomiting issues. During the March 2019 Board hearing, the Veteran stated that he has never been able to eat more than three or four bites of food at any given meal. He said he has bad diarrhea and must always make sure he is near a restroom. See Board hearing transcript dated March 20, 2019 at pg. 11. He also said he is never able to eat more than three or four bites of food at any given meal, his weight goes up and down, he has reflux and abdominal pains associated with reflux, and reflux pain keeps him awake at night. Id. at pgs. 11-13. The Veteran's former spouse testified that when she and their children have gone to restaurants with the Veteran, he has abdominal distress and must use the restroom. Id. at pgs. 14-15. The Veteran underwent a VA examination in April 2020, at which time the examiner noted a diagnosis of GERD and Barrett's esophagus. The Veteran reported having nausea every day after three to four bites of food and throwing up two to three times a week after eating, and he said he must be near a restroom all the time. He said he tried to stay with softer foods, such as bread, and he was able to keep down Mountain Dew. He endorsed occasional swallowing difficulties. He continued to have loose stools. He denied hematemesis, blood in stools, fever, sweats, chills, and weight changes. He said he slept with four pillows to avoid a lot of acid reflux. He was taking Pantoprazole 40 mg twice a day for reflux. The Veteran endorsed continuing heartburn in the mid-stomach to mid-sternal region. The Veteran was positive for persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances caused by reflux that were productive of severe impairment of health. The Veteran was negative for esophageal stricture, spasm, and diverticula. The Veteran was negative for scars. The VA examiner opined, "There is no current evidence of anemia, hematemesis, hematochezia, melena, or material weight loss according to conversation with the veteran and lab[oratory] work in May 2019." Regarding the functional impact of the Veteran's GERD symptoms, the examiner noted that the Veteran's chronic gastrointestinal symptoms cost him his job he held for over 13 years. See VA Esophageal Conditions examination dated April 3, 2020. In a June 2021 appeal brief, the Veteran's representative emphasized that the Veteran experiences frequent heartburn, regurgitation of undigested food or acid, difficulty swallowing, chest pain or upper abdominal pressure and pain, cough, frequent throat clearing, persistent hoarseness and/or sore throat. On review of the evidence, both lay and medical, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 60 percent disability rating for GERD with Barrett's Esophagus under DC 7346 are more nearly approximated. Specifically, VA treatment records reveal complaints of nausea, vomiting, epigastric pain in the subxiphoid and substernal regions, dysphagia, pyrosis, reflux, regurgitation, and sleep disturbances caused by esophageal reflux throughout the rating period on appeal, which are symptoms that more nearly approximate the criteria for a 60 percent rating under DC 7346. See, e.g., VA treatment records dated March 2012, March 2013, May 2017, September 2017, and May 2018. Additionally, during the rating period the Veteran presented to a VA emergency department multiple times with symptoms that included nausea, vomiting, and/or severe epigastric pain. See VA Emergency Department Notes dated March 21, 2013, March 27, 2018, and May 7, 2017. Improvement in the Veteran's symptoms during the rating period appear to be related to the effects of medications he was taking for these symptoms, not a general improvement in the severity of his GERD. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (holding that the ameliorative effects of medication may not be considered in assigning a disability rating where such effects are not explicitly contemplated by the rating criteria). Notably, the April 2020 VA examiner found that the Veteran's symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances caused by GERD were productive of severe impairment of health, which is consistent with the Veteran's treatment records throughout the rating period. The Board also finds it highly significant that VA examiners have determined that the Veteran's GERD impacts his ability to work. The May 2013 examiner noted that the Veteran reported missed work several times a year because of vomiting associated with GERD, and the April 2020 examiner noted that the Veteran's chronic gastrointestinal symptoms cost him his job he held for over 13 years. See VA Esophageal Conditions examinations dated May 15, 2013 and April 3, 2020. Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that his disability picture for the Veteran's GERD with Barrett's Esophagus more nearly approximates the criteria for a 60 percent rating under DC 7346 for the entire rating period on appeal. 38 C.F.R. § 4.3. A 60 percent schedular rating is the maximum under DC 7346. As this is the rating specifically requested by the Veteran, further discussion is unnecessary. Cf. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.